p 




F 259 
.H73 
Copy 1 



Remooal of the Disabilities of Gov, W, W, Holden. 



SPEECH 



OF 



RICHARD C. BADGER, ESQ, 



REPRESENTATIVE FROM WAKE, 



In the House of Representatives, 



GENERAL ASSEMBLY OF NORTH CAROLINA. 



January loth, 1873. 



RALEIGH : 

JOHN NICHOLS & CO., BOOK AND JOB PRINTERS, 
1873. 



CORRESPONDENCE, 



HOUSE OF R.RPRI■:^;ENTATIVES, 

Ralkigh, Jiimiary SQtli, 1873. 
HON. R. C. BADGER, 

Representative from Walce : 
Dear Sir: — Having listetietl with much interest ti) your renmrks, delivered 

511 the House on the inst., on the propo-sitio i to rem iv;>. the disabilities of 

Ex-Gov. W. W. Holden; and feelin;ij sure th;it the learned iiii 1 aide arii;uments 
adduced hy you on the occasion, successfully meet every p »iifiuu taken '\v those 
opposing the proposition, we are anxious that the people of tiie State may have 
an opportunity of reading your speech. We, therefore, resp^'clfully request that 
you furnish us a copy of the same for publication. 

J. W BOWMAN, 
JOHN C. GORMAN, 
Vv'. H. WHEELER, 

And otiiers. 



HOUSE OF RKl'RESENTATIVGS, 

RALKian, N. C, Fdiruary 2, 187^5. 
Messrs. J. W. BOWMAN, JOHN C. GORMAN, W. il. WHEELER, Ami 
Others: 
Gentlemen: — Your kiml and Haltering letter of the .'{Oth ullimo, asking a 
€opy of my remarks on the proposition to remova the disabiliti^'S of Gov. Hol- 
den is received. I shall endeavor to cump y vvitli your request, tliouirh, as t 
«poke without notes, it will be difficult to reproduce exactly wiiat I delivered. 
Its substance shall, at an early eay, l)j placed in your p wv.-'^'^iun. 

Very Truly, 

ii. C. BADGER. 



SPEECH. 



The House of Eepresentatives having under considera- 
tion the resolution introduded by Mk. Badger, of Wake, 
a resolution in regard to William W. Holden : 

The General Assembly of North Carolina do resolve : 

That William W. Holden be relieved of toe disqualification to bold office of 
honor, trust or profit under the State of North Carolina, imposed upon him by 
judgment of the Senate of North Carolina, sitting as a Court of Impeachment, 
on the 22d March, 1871. 

Mr. Badger rising to close the debate, spoke substanti- 
ally as follows : 

Mr. Speaker : I introduced the resolution now under 
consideration on the — day of ISToveraber, 1872, and have 
permitted it to be postponed until this late day of the sess- 
ion, as I considered it of so great importance, and thought 
that its merits should not only be thoroughly understood by 
the members of the General Assembly, but also by the con- 
stituencies which they severally represent. Sir, it is not 
easy to estimate the effect which clemency to this great man 
will have, not only in the restoration ofgoodfeeUng between 
man and man, so much needed in the State of ISTorth Caro- 
lina, but also in dispelling that distrust which pervades the 
National mind as to the genuineness of our present loyalty 
to the Union, and the honesty of our professed acquiescence 
in the principles incorporated into our government by the 
recent amendments to the Constitution of the United States, 
and the civil rights bills which were passed to enforce them. 

In the mind of the nation he is looked upon as a mar- 
tyr, stricken down for his loyalty to the Union, and his at- 
tempted maintenance of equal manhood right ! What he 
did, or attempted to do, after his failure — a failure produced. 



6 

"by the very scTitiiiient wbicli is opposed to these two great 
principles— -svliieh seiitimeiit struck him down from his high 
office, and placed upon him the stigma of disfranchisement, 
that same thing was undcrtalcen and successfully carried 
out by the Legislature of the Nation, and neceived the 
overwhelming endorsement and ratification of the American 
people, in the recent election of Gen. Grant to the Piesi- 
dency. 

AVhat we do here, in matters so intimately connected 
with the great political revolution which the Nation has so 
recently wrought out, is watched with eager interest by the 
powers which control this Nation. As we evince, by our 
action, that hostility to the Union is diminishing or on the 
increase — that, of ourselves, we are prepared or unprepared 
to protect the rights which the Nation has lately conferred 
and now guarantees — -just so far will that National power 
relax or tighten the grasp with which it holds us, to force 
ns to do our duty, and to comply with the National 
will. 

And, our action is none the less'f anxiously looked for 
by the people of North Carolina. For, Sir, a vast num- 
ber of our people — the poor, the uneducated, and the hum- 
ble — those, Sir, upon whose labor our wealth and prosperity 
mainly rest — the laboring men of North Carolina, look to 
and revere this man] as their friend and benefactor. He 
is their friend, and ^Yhen he was in power, he was their pro- 
tector and benefactor. And, a large part of them — 
our recently enfranchised citizens — have given him a place in 
their gratitude and love, next after the immortal Lincoln. 

It is necessary, nay, I may be permitted to say it is 
prudent to give great consideration to so large, and so use- 
ful a part of our fellow citizens. 

Tlicsc consideiations ought to induce all niembers of 
the General Assembly to think earnestly and long before 
they vote adversely upon this resolution. For myself. Sir, 
other considerations in addition to the [above impel me to 
"be zealous in my advocacy of this measure. If adopted by 



a large vote, I feel satisfied that it will be the beginning of 
an era of oblivion of those dark and painful trials through 
which this State has lately passed, and by which her social 
fabric has been fearfully shattered. Until we can forget the 
past, until our angry passions and fierce and bitter party 
madness disappear, there is no hope that North Carolina 
shall arise from her prostration and ruin, and join with her 
sister States in the race of civilization and enlightenment. 

But^ Sir, there is another reason, which impels me to 
speak with feeling upon this subject. He is a good man — 
a Christian man, and a true friend, and he is very, very dear 
to me. 

Sir, it is objected by those who have spoken on the 
other side, that if the General Assembly should desire it, it 
has not the constitutional power to grant this pardon. 

I take it, Mr. Speaker, that there must exist, and that 
there does exist, somewhere in all governments, a power of 
pardon for every penalty which their laws inflict. Pardon 
is an act of grace and mercy. It has and does underlie 
the penal laws of every government known to exist. With- 
out it, even Christianity itself would degenerate into an aim- 
less and senseless fatalism. It is found chrystalized in the 
short and only prayer which the Saviour himself gave to those 
he died to save, which every pious mother instills into her in- 
fant child as his first lesson in life — " Forgive us our tres- 
passes, as we forgive those who trespass against us." 

The gentlemen on the other side, unable to meet this, are 
forced to admit it. But, say they, the power is not in the 
Legislature, but resides in the people themselves ; and they 
give three methods in which the people may exercise it. 
1st. By calling a Convention of the people for that inirpose. 
2nd. By an amendment to the Constitution by Legislative 
enactment. 3rd. By re-assembling the Court of Impeach- 
ment, and procuring a reversal of their decree. 

Oh ! how ridiculous it seems, Mr. Speaker, that such dis- 
tinguished representatives of the people should be forced to 
so paltry a shift to gratify their hatred of this man ; and how 
poor their opinion of our people, when they gravely argue, 



8 

that when offering tbis sublime gift of mercy, tbey should so 
have encumbered it that its attainment is well nigh impossible. 
Such was not the object of the framers of our Con- 
stitution. Q'he provision for the calling of a Conveution 
is the same in our present Constitution that was placed in 
that of 1835. In both, it is in that article entitled amend- 
ments. It has twice receiv^ed an interpretation at the hands 
of the people of North Carolina. The first in 1859, when 
the then gieat Democratic party — a party based on, and 
true to principle, not the mongrel concern which has since 
disgraced its honored name — declared in its platform that 
under it a Convention could only be called for a general re- 
formation of the fundamental law, and again in the recent 
call for a Convention by the Legislature of 1870. It seems 
to me, that it is too plain for argument to be seriously 
asserted, that it was intended that the vast machinery ne- 
cessary to call a Convention, and the great expense thereby 
incurred, should be evoked to remove the disabilities of one 
man. 

And, then, as to the second objection, the statement 
of it carries with it its refutation. That there should be 
inserted in the fundamental law, to stand for all time, as a 
part of our form of government itself, a section that the 
disabilities of William W. Holden are hereby removed. 
Wliy, Sir, after the lapse of a few generations, our Consti- 
tution miglit become a patchwork of the removal of disabil- 
ities imposed l>y partisan Legislatures. And look at 
the expense which must attend such a course. The bill for 
the same must have been read three times in each house of 
the General Assembly, agreed to by three fifths of the whole 
number of membeis of each house, have been published six 
months previous to a new election, and in the next General 
Ass<'nibly he agreed to by two-thirds^f the whole represen- 
tation in each house, read three times, on three successive 
days, in each house, and then submitted to a vote of the 
people for iheir approval. Sir, such was not intended, and 
such is not the case. The power to pardon whicli they ad- 
mit must exist somewhere, was not intended to be granted 
in this nnnncr. 



Mr. Speaker, the gravity of the occasioQ aloue prevented 
me from laughing at the 3rd proposition suggested by the 
gentleman from Anson. What, Sir ! Ke-assemblethe Court 
of Impeachment ! By what machinery would the gentle- 
man accomplish it I The Senate, which imposed this pen- 
alty, has long since ceased to exist. That gentleman is a 
distinguished lawyer, and charity forbids me from suggesting 
that he is trifling with the intelligence of this House. Does 
not the gentleman know what is learnt in the very horn- 
books of the law, that when a Court has tried, convicted, 
and sentenced an offender and its term has expired, or it has 
adjourned sine die, that neither it, nor any other Court, save 
a Court of appeals, has any power to alter the action? To 
the pardoning power, and to that aloue, can the convict 
look for a remission of the penalty imposed, either in whole 
or in part. 

Having thus, as I think, successfully answered each 
of the gentlemen, who have suggested other methods 
of applying the gift of mercy, I shall now proceed to 
ahow that the plan which I have adopted is the proper 
one, and that the power to pardon is conferred by the peo- 
ple in express terms upon the General Assembly. 

The only clauses of the Constitution bearing upon the 
question, are the following : " The Legislative, Executive, 
and Supreme Judicial powers of government, ought to be 
forever separate and distinct fi'om each other." — Art. I : 
Sec. 8. 

" The Legislative authority shall be vested in two distinct 
branches, both dependant on the people, to-wit : a Senate 
and House of Eepresentatives." Art. II: Sec. 1. 

" The Governor shall have power to grant reprieves, com- 
mutations and pardons after conviction, for all oftences (ex- 
cept in cases of impeachment) * * * ." 

I propose to show, Mr. Speaker, that when the people 
conferred upon the General Assembly, all Legislative pow- 
er, they, ex vi termini, conferred upon them a full and absolute 
power of pardon. 

In the first place, let me state, that it is an axiom in the 



10 

constnietioii of American Constitutions that " the constitu- 
tion is a limitation upon the powers ot the Legislative de- 
partment ot the government, but it is to be regarded as a 
grant of powers to the other departments." In other words, 
the Legislature has all the power and sovereignty which the 
people themselves possess, except in so far as they have 
seen fit expressly to hmit them by the Constitution itself; 
whereas the Executive and Judicial Departments have and 
can exercise such powers only as are conferred upon them 
in the Constitution. According to our Constitution, there- 
fore, all Judicial power belongs to the Judicial Department 
exclusively, all purely Executive power belongs to the Ex- 
ecutive Department exclusively, all other power is conferred 
upon the Legislative Department, and must be exercised by 
it exclusively. The Legislature makes the laws, the 
Judges expound them, and the Governor executes them. 
Such is the general distribution of powers under all of our 
American Constitutions. 

Tt is easy to distinguish between Executive or Legislative 
and judicial powers, but when we come to draw the line 
which divides the Executive from the Legislative power, we 
meet with great difliculty. Some of the functions which are 
permitted to be exercised by the Executive, have at all 
times been concurrently enjoyed by the Legislative depart- 
ment. This very power of pardon, Mr. Speaker, though 
conferred upon the Executive, has from time to time been 
the sul)jt'ct of Legislative enactment. In order, therefore, 
that we may understand the exact limits of each, it is 
necessary for us first, to examine the exercise of this power 
by similar departments of that government from which we 
have derived, in the main, our principles and usages, and sec- 
ondly to see what has been the practice and usage of these 
two departments with us since our separation from the 
mother country. 

What, then, are the powers which the Legislative depart- 
ment may exercise ? 

This subject has been exhaustively examined by Mr. 
('(»olie in his .'N.cllent treatise on Constitutional Limita- 



I 



11 

tions, and I may be excused for reading copious extracts 
therefrom : 

" In considering, says be, tbe powers wbicb may be ex- 
ercised by tbe Legislative department of one of tbe Amer- 
ican States, it is natural tbat we should recur to those poss- 
essed by tbe Parliament of Great Britain, after which, in a 
measure, the American Legislatures have been modelled, 
and from which we derive our Legislative usages and cus- 
toms, or parliamentary common law, as well as the prece- 
dents by which the exercise of Legislative power in this 
country has been governed. It is natural, also, that we 
should incline to measure the power of the Legislative de- 
partment in America, by the power of the like department 
in Britain." There is this distinction, however, Mr. Speak- 
er, that with the Parliament rests practically the sovereign- 
ty of the country, while on the other hand, the Legislatures 
of the American States are only vested with the exercise of 
one branch of the sovereignty. 

*' The power and jurisdiction of Parliament" says Sir Ed- 
ward Coke, 4 Inst. 30, "is so transcendent and absolute 
that it cannot be confined either for persons or causes with- 
in any bounds." " This strong language" says Mr. Coolie, 
*' in which the complete jurisdiction of Parliament is here 
described is certainly inapplicable to any authority in the 
American States, unless it be to the people when met in 
their primary capacity for the formation of the fundamental 
law. * # * * j^ becomes important, there- 
fore, to ascertain in what respect the State Legislatures re- 
semble the Parliament in the powers they exercise, and how 
far we may extend the comparison without losing sight of 
the fundamental ideas and principles of the American sys- 
tem. ***** 

There are two fundamental rules by which we may meas- 
ure the extent of the Legislative authority in the States : 

1. In creating a Legislative department and conferring 
upon it Legislative power, the people must be understood 
to have conferred the full, and complete power as it rests in 
and may be exercised by the sovereign power of any coun- 



12 

try, subject only to such restrictious as they may have seen 
fit to impose * # # » * The Legisla- 

tive department is not made a special agency for the exer- 
cise of specifically defined Legislative powers, but is intrust- 
ed with the general authority to make laws at discretion. 

2. But the apportionment to this department of Legisla- 
tive power, does not sanction the exercise of executive or 
judicial functions, except on those cases warranted by Par- 
liamentary usage, where they are incidental, necessary, or 
proper to the exercise of Legislative authority, or where the 
Constitution itself, in specified cases, may expressly permit 
it." 

" The people in framing Constitutions" says Denio, C. J. 
" committed to the Legislature the whole law-making pow- 
er of the Slate, which they did not expressly or impliedly 
withold. Plenary power in the Legislature for all purposes 
of civil government is the rule. A prohibition to exercise a 
particular power is an exception." "It has never been 
questioned, so far as I know" says Eedfield, C. J. *' that the 
American Legislatures have the same unlimited power, in 
regard to legislation which resides in the British Parliament, 
except where they are restrained by written Constitutions." 

" It is only the Legislative power" says Comstock, Judge, 
*' which is vested in the Senate and Assembly. But where 
the Constitution is silent and there is no clear usurpation 
of tlie i)owers distributed to other departments, I think 
there would be great difiiculty and great danger in attempt- 
ing to define the limits of this power." 

" How far the power of giving the law" says Marshal, C. 
J. " may involve eveiy other power, in cases where the 
Constitution is silent, never has been, and perhaps never 
can be definitely stated." 

The same gciuTal tlieory, ]\Ir. Speaker, has been adopted 
and friMjuciitly laid down by our own Gupreme Court. 

Such then are the vast powers conferred by the people 
upon th(^ General Assembly of North Carolina, amounting 
to the whole sovereign power, restricted only by such 
express or implied limitations as are found in our Consti- 
tution. 



V3 

Is then, Sir, the power to pardon conferred with this grant 
of pow^r? What was the authority exercised by the 
English Parhament with regard to pardon ? From an ex- 
amination of the abridgements of the EngUsh hiw, in the 
Inst, of Coke, in the Commentaries ot Blackstone, in the 
treatises of Hale, Hawkins, and Foster, and scattered 
through the opinions of the most distinguished English ju- 
rists, tlie power ot Parliament, by public act, to pardon either 
classes or individuals, is clear and undoubted. The King, 
it is true, as the Executive here, had the power of pardon 
by grant un<ler the Great Seal ; but the power of the Par- 
liament by legislative act was concurrent, and its exercise 
has been frequent. 

Then, is this Parliamentary power one of those Leg- 
islative powers and usages which the people have conferred 
upon the General Assembly of North Carolina ? 

In the Constitution of 177G there is the same distribution 
of powers between the legislative and supreme judicial de- 
partments as are contained in our present Constitution. 
Sec. 4 of the Bill of Ilights reads, ' The Legislative, Exec- 
utive, and Supreme Judicial powers of government, ought 
to be forever separate and distinct from each other." The 
Governor is invested with even a greater power of pardon 
than under the present Constitution, for Sec. 19 of the 
Constitution of 177G, which was in force until the adoption 
of the present Constitution, says, '' The Governor shall have 
the power of granting pardons and reprieves, except, where 
the prosecution shall be carried on by the General Assem- 
bly, or the law shall otherwise direct. And yet, we find, 
that in 1786, when that Constitution was fresh from the 
hand of its makers, many of them members of the Assembly, 
that the General Assembly passed an act of pardon and 
oblivion, the second section of which is in these words, "That 
all, and all manner of treasons, suspicion of treason, felony 
or misdemeanor, committed or done since the 4th day of 
July, 177G, by any person or persons whatsoever, be par- 
doned, released and put in total oblivion." 

Sir, there were great men in that Assembly — giants in 



14 

intellect and patriotism — men who bad stood without flinch- 
ing English tyranny and oppression — men filled with the holy 
inspiration of republican liberty — to whose heroic exertions 
we owe our very government itself. They well understood 
the proper balance of powers in the government which they 
had established, and under a Constitution, which in these 
particulars, at least, is identical with that under which we 
now live, they exerci.^ed the whole power of pardon, which 
is known to exist in the Parliament of Great Bi'itain. Then, 
can it be doubted for one moment, that our Legislature 
possesses the full and complete power of pardon? And yet 
in the face of this, the gentlemen from Person and Anson — 
gentlemen learned in the law — undertake gravely to argue 
that no such power exists. 

Nor is this the ordy instance, Mr. Speaker, in which the 
Legislature of North Carolina has claimed and exercised 
this power. 

In 1806, ISTorth Carolina having gone through the horrors 
of the late rebellion, in order to soothe the angry passions 
thereby engendered, the General Assembly i)assed an act 
granting full pardon to all persons, who as civil or military 
officers of the State, the Contederate States, and of the Uni- 
ted States, had done any act under the cominand of a su- 
perior officer, which would make them liable to the criminal 
law of the State. This, Sir, is an act of pardon — of legisla- 
tive pardon — similar to the act of 1780 which I have lately 
mentioned. Can any gentleman in the tace of this deny 
that the Legislature has this power 1 This act has been 
twice before the Courts, and its constitutionality was not 
even doubted. In the case of the vState against Blalock, 
Phihips, 242, the Court after approving the policy and con- 
stitutionality of the act, say, "Pardon and amnesty are not 
j)rc'dsehf the same. A pardon is granted to one who is cer- 
tainly guilty — sometimes before, usually after conviction. 
It is usualli/ granted by the crown or executive. But am- 
nesty is to those who may be guilty, and is usnallij granted 
by Parliament or the Legislature, and to whole classes, before 
trial. Amnesty is the abolition or oblivion of the offence. 



15 

pardon, is its torgiveuess. The act under consideration is 
totli.'''' This is au unmistakeable declaration bj' tUe Court, 
that we have the power of Legislatuie pardou. For it is 
noticeable, Mr. Speaker, that the Court say, that pardon is 
usually granted by the Executive, which is equivalent to 
saying, that it may he granted by the Legislature, and, that 
amnesty is usualli/ granted by the Legislature, which im- 
plies, that it may he by the Executive. 

And, Sir, as a matter of fact, the Executive of the Uni- 
ted States has, under the itowev ot pardon conferred by the 
Constitution, several times i)roclaimed a general amnesty. 
Mr. John Adams after the Northampton rebellion, as it is 
called, in the year 1800, published a proclamation of general 
amnesty. Mr, Lincoln, too, when out of his great, kind 
heart, he sought to restore our rebellious citizens to their 
allegiance to the government in 18()2, proclaimed an amnes- 
ty to all who would lay down their arms, and signify their 
adherance to the Union. The recent proclamation of Mr. 
Johnson, by which nearly all of the members on this floor 
were relieved of the penalties of their treason, is too well 
known to be more than alluded to. 

The law of ISGO came again before the Courts in the case 
of the State against Keith, G3 N. 0. 142, and was again ap- 
proved. The Court say, '' This act contains a full and uu- 
equiv^ocal pardon of all homicides, &c." * * * * 
There are cases, in which a pardon from the Chief Execu- 
tive has been held void by the Courts as having been ob- 
tained by fraud or false representations ; and probably a 
special pardon from ii Legislature might be avoided on like 
ground." 

It is plain, that in both of these opinions the Court ac- 
knowledge the power of the General Assembly to grant, not 
only a general amnesty, but also a special pardon. It is un- 
usual, Mr. Speaker, for the Legislative power to be evoked 
in a case of special pardon. The Executive can, and ordin- 
arily does exercise the pardoning power in such cases, but 
Sir it is clear that the General Assembly have the power, 
and that they have the sole power, when it is not expressly 



16 

conferred by the Oonstitution upon the Governor. And, 
it doCvS seem to me a wise provision of our law, 
that this power, thoagli conferred upon the Governor with 
Hmitations, is vested absolutely, without limitations, in the 
representativesof the people. For in the people resides all 
sovereignty, and their representatives, who come fresh from 
that people every year, are fully acquainted with their sov- 
ereign will. 

The member from Person undertook to draw a distinc- 
tion between amnesty and pardon. I confess, Sir, that I saw 
but little point in what he said upon the subject. It was a 
distinction withoat a material difference. I take it, that 
amnesty and pardon, iti their essence, are the same. 
The incident to amnesty, which usually distinguishes 
it from pardon is, that it is granted to classes, whereas pardon 
is usually granted to a few or to one. Both are acts of grace 
and forgiveness, and as I have already siiown are the act ei- 
ther of the Legislature or the Executive. 

I think, then, Mr. Speaker, that I have made it plain that 
there is ample and complete powei-in the Legislature to par- 
don an}', and all offences, either before or after conviction. 

Before proceeding to the next point which I propose to 
discuss, let me answer one objection, which has been urged 
to the reasoning I have adopted. It is said, Sir, that the Leg- 
islative power of paidon, if they possess any at all, amounts 
to a repeal of the laws which affix the penalty, and that as 
in the case under consideration, the penalty was imposed 
under the Oonstitution, over which we have no power, that 
therefore ray conclusions are- hot relevant. 

Sir, a Legislative act of pardon in no case has undertaken 
to repeal the law which made the crime. In the only two 
cases which we have had in North Carolina, there is no at- 
tempt or even suggestion in the act that murder, trea- 
sons, felonies and the like are to cease to be punishable. 
Crimes of a specified character, or committed during a lim- 
ited time against such laws, are pardoned, or to use the 
quaint expression of the law of 1786, "put in total ob- 
livion." 

But there is another aspsct of this c.ise. It has been held 



17 

by some that iiuder our American system, when the people 
have conferred certain powers on the Executive Department, 
that they iraphedly deny them to the Legislature, and, that 
having distributed to our Executive the power to pardon, 
our people intended to forbid its exercise by the General As- 
sembly. I have demonstrated, I think, ]Mr. Speaker, that 
such has not been the interpretation placed upon our Con- 
stitution. But taking for granted, for the sake of argument, 
that such is the proper construction, I think I can show that 
the Legislature still has the power to grant the pardon which 
I am urging, 

The people have not conferred upon our Executive the full 
power of pardon, "The Governor shall have power to grant 
reprieves, commutations and pardons, after conviction, for 
all oflences, {except in cases of impenchmenty) From which 
it appears that there are two limitations to the Executive 
power of pardon. 1 All cases before conviction, and 2d, cases 
of impeachment. Pardon being, as I have shown, a 
Legislative power, and in these two cases not being granted 
to the Executive, and thereby impliedly denied to the Leg- 
islature, and as in creating the Legislative Department the 
people must be understood to have conferred the full and 
complete power as it rests in, and may be exercise«l by the 
sovereign power of any country, subject only to such restric- 
tions as they may have seen fit to impose, it follows that 
they did intend and have empowered the Legislature to grant 
pardons, in all cases before conviction and in all cases of im- 
peachment. 

Mr. Speaker, the words in our Constitution or ratliur the 
hmitations which they impose on the Executive are not of re- 
cent ori<nn. The contemporaneous circumstances when they 
became'a part ot the English Constitution throw much light 
upon this part of our subject. In the decline of the health 
of that great English Trince, William of Orange, when it be- 
came necessary on account of failure of heirs of his body, 
and as the Princess, afterwards (,>ueen Ann was childless, to 
settle the English Crown, an act was passed with his consent 
for the settlement and government of the English Executive. 



18 

Among other things, the King was forbidden by this act to 
grant pardons by his charter under the great seal to any per- 
son prosecuted by the House of Commons. Before that 
time the power had been much abused. The Tudors and 
Stewarts to protect their worthless minions and corrupt min- 
isters against the impeachment of parliament, had abused 
this part of the power of pardon. Now note, Mr. Speaker, 
this was a limitation placed upon the Executive, and not an 
abandonment of any of the powers vested in, and exercised 
by the Parliament. The object was only to cut off a portion of 
the Executive prerogative because it had become a source of 
oppression to the English people. 

And, Sir, when we separated from the Englisli Govern- 
ment, the great mm who founded our system wisely retain- 
ed this limita^irion upon the Executive ; they retained it with 
the same view, and in the same form in which it was placed 
in the English Constitution. Jealous of the Executive pow- 
er, they thought it expedient to deny to that department 
any power to prevent the representatives of the people from 
removing corrupt or inefficient officers. But it needs no ar* 
gumeut to prove that they did not, by this, intend to dimin- 
ish the power and authority of the popular branch of the 
Government. 

In the Constitution of 1776, the words are, "except when 
prosecution shall be carried on by the General Assembly. 
This is almost identical with the language of the act of 12 
William 3rd. The words in our present instrument, which 
are taken from the Constitution of the United States, are, 
"except in cases of impeachment." The idea intended to be 
conveyed is the same in each. 

There was one objection, Mr. Speaker, by the distinguish- 
ed gentleman from Anson, which I will give a passing notice. 
He objects to this pardon, that if the Legislature could re- 
mit any portion of the penalty, it could remit the whole, and 
that, if they should pardon that portion of the sentence 
which removed Mr. Holden, the effect would be to reinstate 
him in his office of Governor. If that distinguished lawyer 
or the other worthy member of the bar, the gentleman from 



19 

Lincoln, meant this objection seriously, I must advise them 
to go back to their books ; for there is no ck»arer or better 
understood principle of law, than that a pardon in no case 
restores one to offices forfeited, or property or interests vest- 
ed in others, 'in consequence of the conviction and judge- 
ment — ex parte Garland 4 Wallace 333. 4 Blackstone's com- 
mentaries 402. 6 Bacon's Abdg. title Pardon. Hawkins 
book 2. chap. 37. 

If I shall have convinced the General Assembly that 
they have the power to pardon and remove the disabili- 
ties imposed upon Gov. Holden — and I think the arguments, 
the authorities, and the Legislative usages and precedents 
which I have produced cannot be fairly met — then, Sir, I 
shall proceed to show reasons why it is eminently just, and 
highly politic that it should be done, and that, too, by an 
unanimous vote. 

What, then, Mr. Speaker, led to the impeachment of Gov. 
Holden ? 

Sir, I do not like to comment upon the action of the au- 
gust Court which convicted him and imposed upon him so 
harsh a sentence. I have a profound respect for the 
administration of the laws, and a disposition at all times to 
submit with patience to the adjudication of all departments 
of Government — when the matter is in fieri I will dis- 
cuss and urge my views, as every good citizen ought ; but 
when the decision has been made, then it is my habit, 
however much I may differ as to the propriety and legality 
of such decision, to cease opposition, and acquiesce in the 
result. No other course, Mr. Speaker, is consistent with 
well ordered and well regulated Government. But, Sir, all 
the incidents attending this trial, when we look back after 
the passions of the hour have subsided, point clearly to the 
fiict, that his impeachment was undertaken, conducted and 
accomplished in a delirium of party madness. The very 
Legislature which did it, was but the creature of the fren.zy of 
the times, and no fair exponent of the sober views of the 
people of North Carolina. 
I shall not undertake tQ give in detail the horril)lc 



20 

crimes whicb had been and were being committed in the lo 
calities which he placed under martial law. They have be- 
come a part of the history of the times — times, Sir, 
which reflect no credit upon the people of North Carolina, 
and their revolting details are a dark blot upon the civiliza- 
tion of this age. ''Hundreds of people had been taken from 
their homes and scourged, mainly, if not entirely on account 
of their political opinions ; eight murders had been commit- 
ted, including that ot a State Senator on the same account, 
another State Senator had been compelled from fear of his 
life to make his escape to a distant State ; the Governmentg 
of these localities were mainly if not entirely in the hands of 
men who belonged to the Ku Klux Klan, whose members 
had perpetrated the atrocities referred to; the county 
Governments had not merely omitted to ferret out and 
bring to justice those of this Klan who thus violated the 
law, but they were actually shielding them from arrest and 
punishment; the state judicial power, though, in the hands ol 
energetic, learned and upright men had not been able to 
bring the criminals to justice, and the life of the judge even 
was not safe, on account ot the hatred of the Klan referred 
to. There was a wide spread and formidable secret organi- 
zation in this State, partly political, and partly social in its 
objects. The members of this organization were united by 
oaths, which ignore or repudiate the ordinary oaths and ob«- 
ligations that rest upon all citizens to respect the laws, and 
to uphold the Government. These oaths inculcated hatred 
by the white against the colored people, and an irreconci!* 
able hostility to the great principles of political an 1 civil 
equality." Their crimes were committed in the dead oi' uight, 
by large bodies in disguise upon single individuals. The or- 
ganization was so extensive, that the grand and petty jurors 
and most of the magistrates, losing sight of their duty to 
their State, acknowledged no other sovereignty than the 
Klan. 

"Civil Government and the administration of the criminal 
law in its ordinary and proper forms, were truly and prac- 
tically suspended; whether because of au ^rmed force over- 



'1 



21 

awing and deterring the courts from tlie exercise of their 
functions, or of those more deadly midnight agencies that op- 
erated in secret, it was tlie same to tlie victim who suf- 
fered." 

As was said by Gov. Holden in his letter to the Chief 
Justice, "To the majority of the people of these sections the 
approach of night is like the entrance into the valley of the 
shadow of death ; the men dare not sleep beneath their 
roofs at night, but abandoning their wives and little ones, 
wander in the woods till day." 

I know it was the fashion two j-ears ago, with the up- 
holders of this conspiracy, to deny the existence of these 
facts, but Sir, who dare deny them now in the face of the 
revelations that have been made ? 

I cannot conceive of a condition of things more destruc- 
tive of civil government, or more clearly falling within the 
definition of insurrection. An insurrection, too, from its very 
secrecy, much more formidable than that which assembles in 
the open light of day. 

What, then, was Gov. Holden to do ? Was he to sit still 
and permit civil Government to crumble beneath him, and 
anarchy, and violence, and disorder to ruin the State ? No, 
Sir ! True to the high office which he held, true to the best 
interests of the State of North Carolina, and to humanity, he 
called in aid the powers vested in him by the Constitution 
andthe^laws — invoked the military power of the Government 
to crush this insurection and restore the civil power. 

But, Sir, he was not hasty in taking this step. p]very 
peaceful agency was tried by him, and only after they failed, 
did he appeal to military power. Let me read from that 
proclamation by which he declared the County of Alamance 
in a state of insurection. "I have issued proclamation after 
proclamation to the people of the State, warning offenders, 
and wicked or misguided violators of the law, to cease their 
evil deeds, and, by leading better lives, propitiate those 
whose duty it is to enforce the law. I have invited public 
opinion to aid me in repressing these outrages, and in pre- 
serving peace and order. I have waited to see if the people 



22 

of Alamance would assemble ia public meeting, and express 
their condemnation of such conduct by a portion of the citi- 
zens of the count}', but I have waited in vain. No meeting 
of this kind has been held. J^o expression of disapproval 
even of such conduct by the great body of the citizens, has 
reached this department, but on the contrary, it is believed 
that the lives of citizens who have reported these crimes to 
the executive have been thereby endangered, and it is fur- 
ther believed that many of the citizens of the county are so 
terrified that they dare not complain or attempt the arrest 
of criminals in their midst." 

And, Mr. Speaker, it was not only his duty, but he had 
the power necessary to do that for which he was im- 
peached. I shall read on this subject, from the opinion 
of the Chief Justice in ex parte, Adolphus Moore, in which 
I had the honor to appear. 

*'Mr. Badger, of counsel for his Excellency relied on the 
constitution. The Governor shall be commander in chief, 
and have power to call out the militia to execute the law, 
suppress riots or insurections and to repel invasion, Art. XII, 
Sec. Ill, and on the acts 18(39 and 70, Chap. XXVII, Sec. 
I. The Governor is hereby authorized and impowered when- 
ever in his judgment the civil authorities in any county are 
unable to protect its citizens in the enjoyment of life and 
property to declare such county to be in a state of insurrec- 
tion, and to call into 'active servicethe militia of the State, 
to such an extent as may become necessary to suppress the 
insurrection and he insisted. 

This clause of the Constitution and the Statute impowers 
the Governor to declare a county to be in a state of insurrec- 
tion whenever in hisjiulgmvit the civil authorities are uiii- 
ble to protect the citizens in the enjoyment of life and prop- 
erty. The Governor has so declared in regard to the Coun- 
ty of Alamance, and the judiciary cannot call his action in 
question or review it, as the matter is solely confided to the 
judgment of the Governor. 

2. * * * * * * * 

" I aocede to the first proposition ;" says the Chief Justice, 



LIBRARY OF CONGRESS 



23 lillillllliiiiiiilllli 

014 423 563 
"full faith and credit are due to the action of the Governor in 
this matter, because he is the competent authority acting in 
pursuance of the constitution and the law. The power from 
its nature must be exercised in the executive, as in case of 
invasion or open insurrection. The extent of the power is 
alone the subject ot judicial administration." 

This certainly sustains his power to declare the counties 
in a state of insurrection. As to the second point made 
by me before him, that the Governor had a right to 
arrest and detain the petitioner as a military prisoner, 
the Chief Justice concedes the right to arrest, but de- 
nies that he could be detained, because the "privilege 
of the writ of habeas corjjus'^ shall not be suspended, 
Art. I, Sec. 21. But, Sir, when we consider that he else- 
where in that opinion denominates all the citizens of coun- 
ties in insurrection as insurgents, then it follows that when 
such insurgents are arrested or captured they B>Te prisoners of 
war, and as such, no man can say that any civil writ runs to 
take them out of the hands of the military power. Such, at 
least, was the view of the Governor after a careful examination 
of the opinion from which I have cited. 

The other charges upon which he was impeached were 
but mere incidents to the declaration of martial law. 
I have shown that a state of ins urection di>l exist, and that 
after having tried all other means and failed, the Govenor 
from a sense of public duty, and with an eye single to tlie 
proper and fiiithful execution of his high trust, applied the 
only means left, the military power. But, for his action, 
North Carolina would j^et be under the hideous and barba- 
rous control of the "Invisible Empire," 

But, Sir, if the conviction were right, the punishment which 
he has patiently undergone is more than enough to satisfy 
the demands of justice, viewed even fi'om the standpoint of 
his enemies and prosecutors. There are few penalties known 
to the law so galling to a man of high and manly spirit, as 
those imposed upon this distinguished gentleman, lie was 
deposed from his high office of Governor, and this reflection 
upon his fair name has become a part of the records of his 

/ 



24 

native State, for all time. For two years he has been under 
the ban of disfranchisement, and disqualified to hold any of- 
fice of honor, trust or profit under the State of North Carolina. 
Sir, he has been punished enough, yes, and if his conduct 
had been a[thousand times more criminal. I believe this pun- 
ishment was uujust, as it was the result of partisan hate, 
and I ask ouly that such reparation shall be made to him as 
yet remains in our power. Let us pass this resolution, and 
though we cannot undo the past, we can at least put the seal 
of our condemnation upon it. 



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014423 563 



